BOSTON, Mass. (Feb. 27, 2018) – A Massachusetts joint committee has passed two bills that would limit the warrantless use of surveillance drones. The legislation would not only establish important privacy protections at the state level, it would also help thwart the federal surveillance state.
Sen. Michael Moore (D-Shrewsbury), along with a bipartisan pair of cosponsors, introduced Senate Bill 1348 (S1348) last year. Sen. Patrick O’Connor (R-Plymouth and Norfolk) and 11 cosponsors introduced Senate Bill 1349 (S.1349). The bills are virtually identical and both carried over to the 2018 legislative session.
The legislation would prohibit the use of drones in criminal investigations without a warrant in most situations.
The bill includes an exception to the warrant requirement in the event of an emergency “when there is reasonable cause to believe that a threat to the life or safety of a person is imminent.” If used in an emergency situation, law enforcement would be required to file an affidavit describing the grounds for the emergency access within 48 hours.
The biggest difference between the two bills is that S1348 would specifically allow government agencies to use drones for “purposes unrelated to a criminal investigation or law enforcement purposes.” Information gathered in these situations could not be introduced in a criminal trial, hearing or grand jury proceeding, and could not be maintained, shared, or used for any “intelligence purpose.”
Both bills include a blanket prohibition on weaponized drones.
The legislation also places restrictions on data retention and sharing. Police would be required to destroy any information incidentally collected on areas or individuals not named in a warrant within 24 hours.
Any information collected in violation of the law would be inadmissible in any judicial, regulatory, or over government proceeding.
Both bills were reported favorably by the Joint Committee on Public Safety and Homeland Security.
Impact on the Federal Surveillance State
Although the proposed law would only apply to state and local drone use, it throws a high hurdle in front of some federal programs.
According to a report by the Electronic Frontier Foundation, drones can be equipped with various types of surveillance equipment that can collect high definition video and still images day and night. Drones can be equipped with technology allowing them to intercept cell phone calls, determine GPS locations, and gather license plate information. Drones can be used to determine whether individuals are carrying guns. Synthetic-aperture radar can identify changes in the landscape, such as footprints and tire tracks. Some drones are even equipped with facial recognition.According to research from the Center for the Study of the Drone at Bard College, 347 U.S. police, sheriff, fire, and emergency response units acquired drones between 2009 and early 2017—primarily sheriff’s offices and local police departments.
Much of the funding for drones at the state and local level comes from the federal government, in and of itself a constitutional violation. In return, federal agencies tap into the information gathered by state and local law enforcement through fusion centers and a federal program known as the information sharing environment.
According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators… have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant.
The federal government encourages and funds a network of drones at the state and local level across the U.S., thereby gaining access to a massive data pool on Americans without having to expend the resources to collect the information itself. By placing restrictions on drone use, state and local governments limit the data available that the feds can access.
Currently, 18 states—Alaska, Florida, Idaho, Illinois, Indiana, Iowa, Maine, Montana, Nevada, North Carolina, North Dakota, Oregon, Tennessee, Texas, Utah, Vermont, Virginia, and Wisconsin—require law enforcement agencies in certain circumstances to obtain a search warrant to use drones for surveillance or to conduct a search.
In a nutshell, without state and local cooperation, the feds have a much more difficult time gathering information. This represents a major blow to the surveillance state and a win for privacy.
Both S1348 and S1349 were referred to the Senate Ways and Means Committee for further consideration. At some point, the bills will likely be combined into a single piece of legislation.